Com. v. Zepprinans, D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DALONZO MONTEZ ZEPPRINANS
Appellant No. 2407 EDA 2014
Appeal from the Judgment of Sentence July 17, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011333-2013
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED JULY 06, 2015
Dalonzo Montez Zepprinans appeals from the judgment of sentence
entered by the Court of Common Pleas of Philadelphia County after he was
convicted of aggravated assault,1 possession of an instrument of crime,2
reckless endangerment of another person,3 and possession of a firearm
without a license4 following a non-jury trial. Zepprinans challenges the trial
court’s denial of his suppression motion. After careful review, we affirm.
____________________________________________
1
18 Pa.C.S. § 2702(a).
2
18 Pa.C.S. § 907.
3
18 Pa.C.S. § 2705.
4
18 Pa.C.S. § 6105(a)(1).
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The record reveals the following facts. On July 11, 2013 at about 2:20
a.m., Philadelphia Police Sergeant Francis Rawls responded to a call
regarding a person with a gun at 68th Street and Limekiln Pike. Rick Miller,
the complainant, had returned to his home and called 911, claiming that a
man named “Lonzo” had shot at him. Miller provided a description of what
the shooter was wearing, including blue jeans and a white t-shirt. Upon
arriving at the scene, Sergeant Rawls encountered Miller, who indicated that
the shots had been fired in front of Zepprinans’ house and pointed out where
the house was located. An unidentified woman permitted Sergeant Rawls to
enter the residence and directed him to an upstairs bedroom, where
Zepprinans was discovered, wearing an outfit matching Miller’s description.
Sergeant Rawls secured the property pending receipt of a search warrant.
Detective Edward Davis interviewed Miller twice. During the first
interview, at about 3:30 a.m., Miller stated that someone other than
Zepprinans had shot at him. During a second interview, conducted
approximately 40 minutes after the first interview concluded, Miller indicated
that Zepprinans was the shooter and that he had stated otherwise because
he was scared. After the second interview, Detective Davis applied for, and
obtained, a warrant to search Zepprinans’ home for ballistics evidence and
proof of residence.
Detective Davis conducted the search at approximately 8:30 a.m. He
recovered a 32-caliber fired cartridge casing from the outside of the landing
area near Zepprinans’ porch. Inside, he recovered Zepprinans’ driver’s
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license and personal correspondence addressed to Zepprinans at that
address. While conducting the search, Davis noticed a monitor split into four
views that looked like a security camera monitor. Two of the views showed
a live feed of the porch and front outside area of the house, where the
shooting was alleged to have occurred and where the casing was recovered.
The monitor was attached to a digital video recorder (“DVR”) that Davis also
recovered. Video footage contained on the DVR depicts Zepprinans firing a
handgun.
Zepprinans appeared for trial on July 16, 2014, before the Honorable
Barbara A. McDermott. However, Zepprinans requested that a suppression
motion be heard even though none had been filed. The court allowed the
defense to raise a suppression motion orally, in which Zepprinans argued
that the search warrant obtained by Detective Davis was limited to ballistics
evidence and proof of residency and did not include the DVR. The trial court
permitted the Commonwealth to present its case, while holding the
suppression motion under advisement. Following Detective Davis’ testimony
concerning the discovery of the DVR, the court denied the suppression
motion and permitted the detective to testify regarding the video recording
as it was shown in court.
The defense presented its case the next day, but no witnesses were
called. The trial court found Zepprinans guilty of the aforementioned
charges. That same day, on July 17, 2014, the court sentenced Zepprinans
to five to ten years’ incarceration for the firearms possession charge and
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concurrent sentences of two to four years’ incarceration for aggravated
assault, one to two years’ incarceration for possession of an instrument of
crime, and one to two years’ incarceration for reckless endangerment of
another person. Zepprinans filed a timely notice of appeal and concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b).
The sole claim Zepprinans raises on appeal is that the trial court erred
in denying his suppression motion. In support of this claim, Zepprinans
asserts that the warrant obtained to search his home lacked specificity and
that the video recording was outside of the scope of the warrant.
When reviewing a challenge to the denial of a suppression motion, our
standard of review is as follows:
The standard and scope of review for a challenge to the denial of
a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. When reviewing the rulings
of a suppression court, this Court considers only the evidence of
the prosecution and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. When the record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citations
omitted).
Under the Fourth Amendment to the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution, individuals have the
right to be free from unreasonable searches and seizures. Generally, police
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are prohibited from searching a person or his or her property and seizing
personal items without a search warrant. Commonwealth v. Petroll, 738
A.2d 993, 998 (Pa. 1999). A valid search warrant “must describe the place
to be searched and the items to be seized with specificity, and the warrant
must be supported by probable cause . . . where probable cause exists to
support the search of the area so designated, a warrant will not fail for lack
of particularity.” Commonwealth v. Waltson, 724 A.2d 289, 292 (Pa.
1998). A search warrant satisfies the particularity requirement where the
place, person, or item to be searched for is “precise enough” for the police
officer to identify it “with reasonable effort.” Commonwealth v. Johnson,
33 A.3d 122, 125 (Pa. Super. 2011).
In this matter, the search warrant obtained by Detective Davis
provided authority to search for “[a]ny/all ballistic evidence including a
firearm and proof of residency.” Brief for Appellant, Ex. 1. Zepprinans
asserts that the warrant was not specific enough to justify the seizure of the
DVR and video recordings it contained, since such recordings are neither
ballistics evidence nor proof of residency. This argument fails, however,
because the warrant authorizing a search for ballistic evidence and proof of
residence is sufficiently specific to permit a search of Zepprinans’ residence.
An officer could identify the evidence listed with reasonable effort; as the
trial court noted, “it efficiently and straightforwardly describes the evidence
properly to be seized in such cases.” Trial Court Opinion, 10/13/14, at 5.
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Thus, the search of Zepprinans’ home was valid, and Zepprinans’ argument
is really an argument that the plain view doctrine does not apply to the DVR.
Under the plain view doctrine, police have the authority to seize
evidence in plain view without a warrant, provided that the following criteria
are met:
1) police did not violate the Fourth Amendment during the
course of their arrival at the location where they viewed the item
in question; 2) the item was not obscured and could be seen
plainly from that location; 3) the incriminating nature of the item
was readily apparent; and 4) police had the lawful right to
access the item.
Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012).
Here, the police obtained a warrant prior to searching Zepprinans’ home,
and, as described above, the search warrant obtained was sufficiently
particular to permit the search of his home. The DVR used to record
surveillance footage was in plain view within Zepprinans’ home. The police
were in the same room as the DVR and thus had unobstructed access to it.
Therefore, the only criterion in question is whether the incriminating nature
of the DVR was readily apparent.
In order for a police officer to make a plain view seizure, the officer
must have probable cause to believe the evidence in question is either
contraband or otherwise incriminating evidence. Commonwealth v. Ellis,
662 A.2d 1043, 1049 (Pa. 1995). Probable cause involves a fair probability
of demonstrating criminal activity and exists where “the facts available to
the officer would warrant a man of reasonable caution in the belief[] that
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certain items may be contraband or stolen property or useful as evidence
of a crime.” Commonwealth v. Wright, 99 A.3d at 565, 569 (Pa. Super.
2014) (quoting Commonwealth v. McEnany, 667 A.2d 1143, 1148 (Pa.
Super. 1995)) (emphasis in original). Thus, an officer’s knowledge specific
to the crime is highly relevant regarding whether the incriminating nature of
an object is apparent. See, e.g., McEnany, 667 A.2d 1143 (indicating plain
view exception permitted seizure of cellular telephone during valid search of
van because officers knew van was used to transport defendant and
telephone calls were made to murder victim on day of crime).
Based upon interviews with Miller, Detective Davis was aware that the
alleged shooting had occurred at approximately 2:20 a.m. on July 11, 2013,
in front of Zepprinans’ home. A casing from a fired .32 caliber bullet was
recovered in front of the house. However, Miller’s recounting of the facts
contained a discrepancy as to the identity of the shooter. Thus, when
Detective Davis observed the DVR making a live recording of the area in
front of the house, these specific facts indicated the potentially incriminating
nature of the DVR. Detective Davis could readily determine that the DVR
was recording from a surveillance system. A fair probability existed that the
DVR had been recording at the time of the shooting since access to the area
had been restricted since police arrived, which prevented tampering with the
system. Thus, probable cause existed to seize the DVR and its contents, as
the recordings could potentially verify that a shooting occurred as well as the
identity of the shooter.
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Moreover, as the trial court noted, “[n]o evidence could be more
relevant, and little evidence more vulnerable to spoliation, than a video
recording of a crime taken and held by the person who committed the
crime.” Trial Court Opinion, 10/3/14, at 5.
Based on the foregoing, we find that the trial court did not err in
denying Zepprinans’ suppression motion, as the police obtained a valid
warrant to search Zepprinans’ home, discovered the DVR in plain view as it
recorded surveillance footage, and reasonably believed that the DVR would
contain recordings useful as evidence of the crime in question.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2015
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